The Supreme Court has crafted unprecedented rules to govern contracts to arbitrate under the Federal Arbitration Act (FAA). Although Congress in enacting the FAA prescribed a rule of contract enforcement, it preserved state law defenses to enforcement, state regulation of contract formation, and interpretation issues that did not frustrate the enforcement mandate. This Article shows how the Court has created separate federal rules of formation, interpretation, and defense under the enforcement umbrella. It argues that because states have statutorily embraced the FAA’s enforcement mandate, there is no need for separate federal rules of formation, interpretation, or defense. This Article also demonstrates that the new federal rules for arbitration contracts fail to accomplish their legal mandate of guaranteeing substantive remedies in the arbitral forum. This failure occurs in many cases because of the merger of commercial contract precedents with disharmonious labor arbitration precedents. Using the Court’s rules for vacatur of arbitration awards, and its rules governing labor contract enforcement, this Article provides concrete examples of lost substantive rights attributable to arbitration contract enforcement. To avoid substantive waivers, this Article proposes an interpretive model drawing from Title VII’s disparate impact jurisprudence that prevents substantive waivers, and defers to state laws that are practically consistent with the FAA’s prescription of enforcement.

Stephen Plass is a Professor of Law at St. Thomas University School of Law.

Jonathan Grode, U.S. Practice Director at Green and Spiegel, joins the podcast to discuss the evolving landscape of business immigration law. Grode, who serves as an adjunct professor at Temple University Beasley School of Law, also shares humanitarian considerations and an anecdote from 2017’s travel ban.

Professor Stefanie A. Lindquist (Editor-in-Chief of Temple Law Review, Volume 61) joins the podcast to discuss the nomination of Brett Kavanaugh to the U.S. Supreme Court. Professor Lindquist serves as deputy provost and vice president for academic affairs at Arizona State University and has written extensively on the Court, including in her book, “Measuring Judicial Activism.” The […]

The Parliament Podcast welcomes Judge Nelson Diaz (LAW 1972) to discuss his forthcoming memoir, “Not from Here, Not from There.” The book chronicles Diaz from his youth in the Bronx to his ascent to becoming the first Latino judge to serve in the Commonwealth of Pennsylvania, general counsel for the Department of Housing and Urban […]

Temple Law Review, Volume 91 has launched the publication’s first podcast. In its first episode, the podcast welcomes Steven Silver (LAW 2013) to discuss the Supreme Court’s Murphy v. NCAA decision, local adoption of sports betting, and related considerations such as integrity fees and data agreements. The episode is available on both SoundCloud and YouTube.